Lombardo v. Dr. Seuss Enterprises, L.P
279 F. Supp. 3d 497 (S.D.N.Y. 2017), aff’d, No. 17-2952-cv, 2018 WL 3323476 (2d Cir. 2018)
On July 6, 2018, the Second Circuit upheld the Southern District of New York’s ruling that Matthew Lombardo’s Who’s Holiday!, a parody of Dr. Seuss’ How the Grinch Stole Christmas! (Grinch), is fair use. Even though this case is not related to video games, it is not every day that a court issues an opinion involving Dr. Seuss and fair use (hey, that rhymes!).
Who’s Holiday! was an Off-Broadway play describing the aftermath of the Grinch from the perspective of an adult Cindy-Lou Who. Upon turning 18, Cindy marries the Grinch and has a child, but her life is a struggle as they deal with poverty, health-care, and the legal system. The entire play is written in rhymes to replicate the tone of Dr. Seuss, but with the addition of adult language and references. The show only ran for one month back in December 2017. The play organizers filed a declaratory judgement action after receiving a cease-and-desist letter from Dr. Seuss’ estate. The organizers asked the court to rule that Who’s Holiday! was a parody covered by the fair use doctrine of copyright law.
Courts determine fair use by applying a four-factor test laid out in 17 U.S.C. 107:
- The purpose and character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
When considering if a use is a parody, courts tend to focus on the “Purpose and Character” factor by looking to see if a use transforms or alters the original’s meaning, message, or expression. The more transformative a use is, the more likely it is to be considered fair use, even if the use has a commercial aspect. According to the Second Circuit, a use is considered a parody and therefore transformative when it comments on the substance or style of the original.
The district court found Who’s Holiday! to be a parody because it comments on the Grinch by pointing out the absurdities in the idealized world of the original. The Second Circuit agreed with the district court’s analysis, stating, “[T]he district court correctly determined that the Play is a parody, imitating the style of the Grinch for comedic effect and to mock the naïve, happy world of the Whos.” 2018 WL 3323476, at *2.
Both the district court and Second Circuit found the remaining fair use factors to weigh in Who’s Holiday!‘s favor. While the opinions of both courts do not significantly alter fair use analysis, the district court distinguished this case from TCA Television Corp. v. McCollum, 839 F.3d 168 (2d Cir. 2016). In TCA Television, the Second Circuit held a play’s use of the Abbott and Costello “Who’s on First” routine did not constitute a fair use because the routine was irrelevant to the larger message of the play. Essentially, the Second Circuit felt the play in TCA Television did not comment on the “Who’s on First” routine enough to be considered a parody worthy of fair use. Who’s Holiday!, on the other hand, is a fair use because, as the district court stated, “the Play’s use of the Grinch is necessary to the purpose and meaning of the Play; absent that use, much of the Play’s comedy and commentary evaporates.” 279 F. Supp. at 510.
The Second Circuit’s opinion is likely the end of the road for this case as the only options for Dr. Seuss’ estate are to ask the Second Circuit to review en banc or to appeal to the Supreme Court, and neither seem very likely to happen.